WikiLeaks founder lurks beyond grip of US law
The Constitution clearly bans so-called ex post facto laws so that the government can't toss someone in jail for something that was legal at the time it was done.
Attorney General Eric Holder wants us all to know that the Justice Department has begun a deadserious probe into WikiLeaks's release of hundreds of thousands of internal government documents, many of them classified.
It is an "active, ongoing criminal investigation," he told reporters this week as news stories stemming from the document dump appeared.
President Barack Obama's top spokesman went further. Robert Gibbs called those responsible "criminals, first and foremost."
You can say that WikiLeaks founder Julian Assange is reckless and dangerous for making the documents public.
You can say he's hurt the international conversation among diplomats and endangered the lives of innocent people who have helped the U.S. in time of war, people who staked their lives on promises of anonymity.
But before you call someone a criminal, you have to have a law that you can say he broke. Holder is going to have a hard time doing that with Assange.
If the attorney general were confident, he wouldn't have answered a reporter's question about difficulties in prosecuting Assange this way:
"To the extent there are gaps in the laws, we will move to close those gaps."
This is essentially an acknowledgement of a hole in the law. And even if prosecutors can leap across that, they'd then face a really big hurdle in the form of the First Amendment.
Yes, Congress can pass new laws and amend old ones, and would no doubt be happy to do so if it meant locking up Assange. But it wouldn't.
New laws can't criminalize past conduct. The Constitution clearly bans so-called ex post facto laws so that the government can't toss someone in jail for something that was legal at the time it was done.
Besides, even if current law were sufficient, how would authorities bring Assange, an Australian native in hiding outside the U.S., into this country to stand trial?
Presented with this question, Holder told reporters that no one's foreign citizenship or residence would prevent them from being targeted. But that brings us back to this question: on what charge could he be indicted?
Without that, Assange could live next door to Holder and wave at him daily without fear of arrest as the nation's top prosecutor went off to work.
No law criminalizes civilian release of classified information, except in rare circumstance, such as revealing the name of an undercover agent or disclosing secret codes. Britain has an Official Secrets Act, but prosecutions are hard to mount, difficult to win and easy to lambast as politically motivated.
All we've got is that World War I-era spy law, the Espionage Act of 1917. Representative Peter King, the New York Republican and next chairman of the House Homeland Security Committee, sent Holder a letter this week urging him to use the law to charge Assange.
The best shot at making that work would be by proving Assange encouraged the leak and conspired with his inside source to disgorge the documents. An Army private first class has been charged under military law with some of the leaks.
And even if investigators can find a clear conspiracy between the two, a ruling by a federal judge in another case shows it isn't easy to use the spy law to prosecute civilians.
"The government would still have to prove it was potentially damaging to national security, that he knew it was potentially damaging, that he understood that his conduct was unlawful," says Baruch Weiss, a former U.S. prosecutor who helped defend two lobbyists charged with violating that law.
"This would be a messy prosecution," says Weiss, a partner at Arnold & Porter in Washington.
There isn't much court precedent on the point, but the lobbyists got a boost from a 2006 ruling that limited the scope of the broadly written espionage law. The ruling, by U.S. District Judge T. S. Ellis III in Alexandria, Virginia, helped persuade Holder last year to drop the case against the two lobbyists for the American Israel Public Affairs Committee.
They had been charged in 2005 for getting and passing along confidential government information in a way they claimed was perfectly legal and common in Washington.
Any prosecution of Assange would come up against First Amendment issues. How can you criminalize speech, especially political speech, especially on matters of grave public importance? That would seem to fly in the face of the Constitution's promise of a free press and free speech.